Mentioning your competitor in an ad does not constitute a trademark violation

Conventional wisdom is that advertisers are avoiding calling a Super Bowl a Super Bowl because they don’t want to infringe on the NFL’s trademark in the name. But if that’s the case, it’s because the advertisers are being overly cautious, not because they’d actually be doing anything illegal.

The core purpose of trademark law has always been to identify the source of goods—to make sure that some competitor doesn’t try to pass off its goods as the genuine article. Over the years, that original purpose has been added to and supplemented with other theories, but its fundamental aim remains the same: keeping consumers from being fooled as to whether or not the trademark owner is making or endorsing the person using the trademark without permission.

This doesn’t mean that people are barred from using trademarked terms, though. Burger King can use the terms “McDonald’s” and “Big Mac” in its ads to refer to its competitor; movies and TV shows can use and display products without permission—if they make fake brands or blur them out, it’s either out of an excess of caution or in the hope that brands later become sponsors.

I always thought it was strange when a competitor's ad would run on television and they would never name the competing product. It created an awkward and forced vacuum.